Appellant Wilson had been appointed to the Nova Scotia Public Service subject to a
twelve-month probationary period which had been validly extended six months
following a warning, with reason, that his work was unsatisfactory. After the
Deputy Minister informed him that this services were not required on the expiry
of the extended probationary period, Wilson filed a grievance which carried through to the appointment of a
Civil Service Arbitration Board. The Board held that the Commission as the
employer was the proper authority to dismiss Wilson—not the Deputy Minister—and ordered Wilson’s confirmation as a permanent employee. Before this decision was
rendered but after the grievance had been filed, an Order in Council terminated
Wilson’s employment pursuant to
s. 57 of the Act. This termination, too, was grieved according to the
agreement, but the Minister responsible rejected the request of the Civil
Service Joint Council for the appointment of another arbitration board because
it was “…not the proper forum to challenge the actions of the Governor in
Council”. Appellants’ originating notice of motion under the Arbitration Act
for appointment of an arbitration board was dismissed; the appeal from this
decision was unanimously dismissed by the Court of Appeal.

[Page 212]

A rudimentary form of collective bargaining
had been provided for in the Civil Service Joint Council Act. The
collective agreement entered into between the appellant association and the
Crown in right of Nova Scotia
was ratified by regulation of the Civil Service Commission and that regulation
was subsequently approved by Order in Council. The terms of the contract which
included limitations on the Crown’s right to dismiss at will, were authorized
by the Civil Service Act. Sections 22 and 57 of that Act, however,
respectively provided that appointments to the Civil Service were “during
pleasure” and that “Nothing contained herein impair[ed] the power of the
Governor in Council to remove any… employee”. The legal issue was whether,
notwithstanding the regulation approving the collective agreement and
notwithstanding the Nova Scotia Government Employees Association Act, the
provincial Crown could refuse to recognize the terms of the collective
agreement and ignore its provisions limiting the Crown’s rights to dismiss at
will by invoking ss. 22 and 57 of the Civil Service Act.

Held (Martland,
Ritchie and Estey JJ. dissenting): The appeal should be allowed.

Per Laskin
C.J. and Dickson, McIntyre and Chouinard JJ.: The provisions for a form of
collective bargaining in the Civil Service Joint Council Act displaced
ss. 22 and 57 of the Civil Service Act in respect of an agreement
concluded by the Joint Council or established by arbitration. The combined
effect of the approved regulation ratifying the agreement and the incorporation
into that agreement of the Civil Service Joint Council Act arbitration
provision excluded the application of s. 22. Section 57 did not constitute
a grant of any fresh statutory power, but was merely a holding provision which
left the power of the Governor in Council subject to contractual limitations.
Far from s. 57’s swallowing up both the collective agreement entered into
by the Crown and the approving regulation, the collective agreement, approved
by the Governor in Council and the Civil Service Commission, amounted to a
deliberate subordination of whatever unilateral power of dismissal the Governor
in Council might have had. The words “nothing herein contained” in s. 57
could not have had the effect of overcoming a bargain negotiated in good faith
outside the purview of the Civil Service Act and under authorizing
legislation. The law had gone too far towards establishing a relative equality
of legal position as between the Crown and those with whom it dealt to warrant
a reversion to an anachronism. The power to dismiss at pleasure was at best an
implied term of employment if there was no contrary provision. The authorized
collective agreement expressly displaced the

[Page 213]

common law position, and while it did not
derogate from the Civil Service Act, it did overcome the effect of
s. 57.

Per Martland,
Ritchie and Estey JJ., dissenting: Section 57 retained for the Governor
in Council an overriding power to dismiss any civil employee, notwithstanding
any other provision contained in the Act. The agreement operated only by virtue
of a regulation made by the Commission pursuant to s. 9 of the Act. As the
power to make the regulation remained subject to s. 57, the regulation
could only be made subject to the power of the Governor in Council to dismiss.
The Association’s incorporating statute did not confer on it or its members any
rights or privileges against the Crown. Bargaining, even though the Association
was empowered to do so collectively with the Crown, had to be effected pursuant
to the Act. The resulting agreement only acquired validity when approved by the
Governor in Council as a regulation.

APPEAL from a judgment of the Court of Appeal for Nova Scotia[1],
dismissing an appeal from the dismissal by Richard J. of a motion seeking
arbitration. Appeal allowed.

Peter G. Green and Joel E. Fichaud, for
the appellants.

William Wilson and Mollie Gallagher, for
the respondents.

The judgment of Laskin C.J. and Dickson,
McIntyre and Chouinard JJ. was delivered by

THE CHIEF JUSTICE—The issue in this appeal,
which is here by leave of this Court, is whether the appellants are entitled to
have a dismissal grievance submitted to arbitration under a collective
agreement between the appellant Association and the Crown in right of Nova
Scotia, represented by the provincial Civil Service Commission, or whether the
Crown can legally insist that it retains an unimpaired power to dismiss at its
pleasure employees, like the appellant Wilson, who are covered by the
collective agreement.

[Page 214]

Wilson was originally employed with probationary
status for a twelve-month period from July 15, 1974. His probationary period
was extended to January 14, 1976. By letter of December 23, 1975, he was
notified that his services would no longer be required after January 14, 1976.
He filed a grievance, pursuant to the collective agreement, and it was taken to
arbitration, without protest by the Civil Service Commission of his right and
that of the appellant Association to invoke arbitration under the collective
agreement. The arbitration board found (indeed, it was conceded) that Wilson’s
services had not been validly terminated, and in its award of September 22,
1976, the Board held that Wilson had acquired permanent status as of January
15, 1976.

Notwithstanding its participation in the
arbitration, the Civil Service Commission was instrumental in having an
order-in-council passed on February 12, 1976, terminating Wilson’s employment,
purporting to do so pursuant to s. 57 of the Civil Service Act, R.S.N.S.
1967, c. 34. I shall return to s. 57 and consider also other
provisions of the Civil Service Act, such as s. 22 (upon which the
Crown also relied before this Court) in due course. The arbitration board was,
of course, aware of this when it made its award. It gave Wilson back pay for
the period January 15, 1976, to February 12, 1976, noting that the Order in
Council of February 12, 1976, was the subject of a second grievance that might
proceed to arbitration. It is by reason of the refusal of the Civil Service
Commission to proceed to arbitration on this second grievance that the case now
before this Court arose.

The collective agreement entered into between
the Association and the Crown in right of Nova Scotia, and executed on October
29, 1975, was made the subject of a ratifying regulation of the Civil Service
Commission and was given Order in Council approval on November 25, 1975. The
Order in Council recites that the Governor in Council was pleased to approve the
regulation “on… the recommendation of the Minister through whom the Civil
Service Commission reports…

[Page 215]

[and] on the recommendation of the Civil Service
Commission and pursuant to Section 9 of the Civil Service Act”.

Section 9 of the Civil Service Act provides
as follows:

9 The
Commission, with the approval of the Governor in Council, may make regulations
relating to employment in the Civil Service respecting:

(a) terms and conditions of employment;

(b) eligibility and qualifications for
appointment;

(c) nature and extent of examination;

(d) classification and reclassification of
employees;

(e) transfer and promotion of employees;

(f) compensation and increases in
compensation of employees;

(g) termination of employment and what
constitutes resignation;

(h) holidays, vacation, sick leave, special
leave, and other absences;

(i) days and hours of work;

(j) hearing and determination of complaints
and grievances;

(k) public service award;

(l) the keeping and making of records and
reports relating to employees;

(m) any other matter deemed necessary or
advisable for the better carrying out of the purposes and intent of this Act.

There is no question that it authorizes (lest
there be any doubt about it) the terms of the collective agreement that was
entered into between the Association and the Civil Service Commission on behalf
of the Crown in right of Nova Scotia. The legal question that is raised by this
case and, to which I now come, is whether, notwithstanding the regulation
approving the collective agreement and notwithstanding the Nova Scotia
Government Employees Association Act, 1973 (N.S.), c. 136, the provincial
Crown may refuse to recognize the terms of the collective agreement, and ignore
its provisions (which limit whatever rights it may have to dismiss at will), by
invoking s. 22 and s. 57 of the Civil Service Act. The
morality of the Crown’s behaviour in this case is not the direct concern of
this Court.

[Page 216]

Sections 22 and 57 of the Civil Service Act read
as follows:

22 Except
where otherwise expressly provided, all appointments to the Civil Service shall
be upon examination pursuant to this Act and the regulations and shall be
during pleasure.

…

57 Nothing
herein contained impairs the power of the Governor in Council to remove or
dismiss any Deputy Head or employee.

It is sufficient to trace these provisions back
to the Civil Service Act 1952, 1952 (N.S.), c. 4, which became c. 34 of
R.S.N.S. 1954. In the Act they were, respectively, s. 23 and s. 46,
the latter section being then formulated in different language. In 1962 a
new Civil Service Act was enacted, amending and consolidating the then
existing Act. The new Act, 1962 (N.S.), c. 3, retained s. 23 and what was
s. 46 became s. 58, reading as it does now in the current Act. When
these Acts of 1952 and 1962 were enacted there was no provision for collective
bargaining in the civil service but the situation changed with the enactment of
the Civil Service Joint Council Act, 1967 (N.S.), c. 6, which became
R.S.N.S. 1967, c. 35.

The Civil Service Joint Council Act provided
for the establishment of a Civil Service Joint Council composed of three public
servants appointed by the Governor in Council and three members appointed by
the Governor in Council on the recommendation of the Nova Scotia Civil Service
Association, an unincorporated association of persons in the employ of the
provincial Government through appointment by the Civil Service Commission.
There was to be an independent chairman of the Joint Council appointed by the
Governor in Council.

The business of the Joint Council depended on
the agenda prepared by the chairman pursuant to s. 3 of the Act. Under
that section the chairman was obliged to

3…

(d) put on the agenda at the request of a
member any matter concerning the terms of employment of

[Page 217]

civil servants including, but not so as to
restrict the generality of the foregoing, working conditions, remuneration,
leaves of absence and hours of work provided that he shall not put on the
agenda any matter until he is satisfied that the appropriate proceedings in
respect of the matter have been taken under Section 59 of the Civil Service Act
and Regulations 61, 62 and 63 of the Regulations under the said Act;…

This provided a negotiating basis for the Joint
Council as prescribed by s. 4 which was as follows:

4 The Joint
Council shall consider and negotiate such matters as are put on the agenda by
the chairman pursuant to Section 3.

If a decision was reached on matters on the
agenda, s. 5 of the Act required that it be signed by the chairman and
vice-chairman “and the chairman shall transmit it to the appropriate authority
to be implemented and it shall be binding on the Association”.

The Civil Service Joint Council Act provided
for mediation if agreement could not be reached, and if mediation failed
arbitration by a Civil Service Arbitration Board could be requested by either
the Minister of Labour or the Association. Section 7(3) of the Civil Service
Joint Council Act provided that the chairman of the Board sign its
decisions and transmit them to the appropriate authority for implementation and
they were to be binding on the Association.

A key section of the Act is s. 8,
reading as follows:

8 The
Governor in Council, notwithstanding the provisions of the Civil Service Act,
is empowered to and subject to Section 9 shall implement any decision of the
Joint Council or the Arbitration Board and the Civil Service Commission is
empowered to and subject to Section 9 shall implement such a decision in the
same manner as it implements a provision of the Civil Service Act or a
regulation made thereunder.

It appears to me to be clear that the Civil
Service Joint Council Act, providing as it does for a rudimentary form of
collective bargaining, would by reason of s. 8, displace ss. 22 and 57 of
the Civil

[Page 218]

Service Act in
respect of any concluded agreement by the Joint Council on security of
employment or protection of employees against discharge unless for just cause.
Equally, it would displace ss. 22 and 57 of the Civil Service Act if
such security or protection arose as a result of a decision of the Civil
Service Arbitration Board where the Joint Council was unable to reach agreement
and arbitration was invoked to establish an agreement. Force is lent to this
arrangement by the obligation laid upon the Nova Scotia Civil Service
Association by s. 10 of the Civil Service Joint Council Act not to
sanction, encourage or support, financially or otherwise, a strike by its
members or any of them.

It may be suggested that a decision of the Joint
Council or of the Civil Service Arbitration Board must first be made in the
light of the provisions of the Civil Service Act and that it is only
those decisions that pay deference to ss. 22 and 57 that are subject to
implementation. This, in my view, would be a tortured interpretation of the
scheme of the Civil Service Joint Council Act. Implementation is, in my
view, inseparably connected with substantive decisions arrived at through
negotiation or through arbitration. It must be remembered that the chairman prepares
the negotiation agenda and is obliged to put on the agenda, inter alia, “any
matter concerning the terms of employment of civil servants”. This surely
envisages the possibility of some protection against arbitrary discharge. There
is no limitation in this respect based on ss. 22 and 57 of the Civil
Service Act and the implementation provisions of s. 8 of the Civil
Service Joint Council Act simply carry the process to its binding result by
expressly excluding the Civil Service Act (and hence ss. 22 and 57) from
qualifying the obligation of implementation. Indeed, it is the duty of a Court
to give legislation a reasonable construction which will achieve its purpose
and not seek to defeat it by technical refinements.

The Civil Service Joint Council Act was
legislation posterior to the Civil Service Act and, with the former Act
still in force, further legislation was enacted in 1973 incorporating the Nova
Scotia

[Page 219]

Government Employees Association. This
Association, an appellant in the present case, was obviously put in place to
represent Nova Scotia Government employees instead of the old Civil Service
Association. Its constituent statute, 1973 (N.S.), c. 136, stipulated as one of
its objects (s. 2(d)) “to bargain collectively with Her Majesty the Queen in
the right of Nova Scotia” and also (s. 2(e)) “to bargain collectively pursuant
to the Trade Union Act with boards, agencies, and commissions of Her Majesty
the Queen in the right of Nova Scotia from time to time appointed”. Among the
powers of the incorporated Association were those set out in s. 6(d), as
follows:

6 The
Association is empowered

…

(d) to enter into arrangements with any
authorities, governmental, municipal, local, or otherwise that may seem
conducive to the attainment of the Association’s objects or any of them, and to
obtain from any such authority, rights, privileges and concessions which the
Association may have and the capacity to receive and may think desirable to
obtain, to carry out, execute, exercise or comply with any such arrangements,
rights, privileges and concessions;

It was in pursuance of its objects and powers
that the Association negotiated the collective agreement out of which Wilson’s
grievances arose. That agreement runs the gamut of provisions commonly found in
such documents. I think it important to highlight some of its provisions.
Article 2.01 states that the Employer (defined as Her Majesty the Queen in
the right of the Province of Nova Scotia as represented by the Civil Service
Commission) recognizes the Association as the exclusive bargaining agent.
Article 3.01 states that the agreement applies to and is binding on the
Association, the employees and the Employer. Article 7.01 reproduces the
already quoted provisions of s. 10 of the Civil Service Joint Council Act
and, indeed, mentions the Act in forbidding the sanctioning or support or
encouragement of a strike. Two central terms of the collective agreement are
articles 23.01 and 24.01. Article 23.01 provides that “The provisions for
Arbitration contained in the Civil Service Joint Council Act shall

[Page 220]

apply to grievances resulting from this
Agreement”. Article 24.01 states that “No employee who has completed his
probationary period shall be disciplined by suspension without pay or by
discharge except for just and sufficient cause”. Article 24.03 is relevant
in respect of discharge grievances because it provides for invocation of the
grievance procedure at its final level and for consequent arbitration under the
provisions of the Civil Service Joint Council Act.

What we have here, therefore, is a collective
agreement between the Crown in right of Nova Scotia and the appellant
Association which (1) protects civil servants covered by the agreement from
discharge except for just and sufficient cause and (2) establishes arbitration
by reference to the Civil Service Joint Council Act as the agreed method
of resolving grievances, including grievances against allegedly unjustified
discharge. If ss. 22 and 57 of the Civil Service Act were displaced
where successful negotiations or, failing that, arbitration took place under
the Civil Service Joint Council Act, has the situation changed by reason
of the establishment of a more mature collective bargaining relationship
between the Crown in right of Nova Scotia and the appellant Association through
the incorporation of the Association with a stated object to bargain
collectively with the Crown?

The power and authority of the Crown in right of
Nova Scotia to enter into a collective agreement with the Association is unquestioned.
The Crown would have it, however, that whatever other advantages and protection
the agreement gave to civil servants they had no security against arbitrary
discharge, although protection against this is one of the rationales of
collective bargaining and represents a central feature of collective agreements
in this country.

The contention is that both ss. 22 and 57 of the
Civil Service Act operate to limit the reach of the collective agreement
to provide protection against allegedly unjustified discharge and to require
arbi-

[Page 221]

tration of a discharge grievance. I do not think
that this contention is maintainable. In my view, the combined effect of the
approved regulation under s. 9 of the Civil Service Act ratifying
the collective agreement with the Association and the incorporation into the
arbitration clause of that agreement of the provision for arbitration in the Civil
Service Joint Council Act is to exclude the application of s. 22. I do
not read the words therein “Except where otherwise expressly provided” as
necessarily requiring that the express provision otherwise should be in a
different enactment. Indeed, s. 9(a) of the Civil Service Act, in
authorizing regulations respecting “terms and conditions of employment” must
contemplate that such terms and conditions might limit the power to dismiss at
pleasure. It would be different if s. 22 read “notwithstanding anything in
or authorized by this Act”. The Crown itself appeared to have no doubt of its
position under the collective agreement when it negotiated the agreement with
protection against unjustified discharge and agreed to arbitrate grievances and
when it approved a regulation giving force to the collective agreement.

Again, I do not see how s. 57 of the Civil
Service Act can stand in the way of the claim of the appellants. There are
two views that may be taken of s. 57. One view is that it merely restates
the common law position that employees of the Crown hold at pleasure, at least
if there is nothing in their terms of engagement to dictate otherwise; cf.
Reilly v. The King[2], at
p. 179. The other view is that the provisions of the Civil Service Act should
not be read as impairing the power of dismissal or removal. Neither of these
views controls the present case.

Indeed, whichever of these two views is taken,
the essential feature of s. 57 is that it does not constitute a grant of
any fresh statutory power. It is merely a holding provision and leaves the
power of the Governor in Council subject to such limitations as he may contract
to accept. Far from s. 57

[Page 222]

swallowing up the collective agreement entered
into by the Crown and swallowing up the approving regulation under s. 9 of
the Civil Service Act, the collective agreement, carrying the approval
of the Governor in Council as well as of the Civil Service Commission, amounts
to a deliberate subordination of whatever unilateral power of dismissal the
Governor in Council otherwise might have had. Moreover, when s. 57 says
“Nothing herein contained”, it cannot have the effect of overcoming a bargain
negotiated in good faith outside of the purview of the Civil Service Act and
under other authorizing legislation.

I wish to dwell briefly on the nature of the
common law power of the Crown to dismiss at pleasure. Section 57 uses the word
“power” and not the word “prerogative”, which has sometimes been used in this
as in other connections where Crown authority is involved. In Shenton v.
Smith[3], the
Privy Council rejected the designation of “prerogative” to characterize the
Crown’s right to dismiss civil servants. The law in Canada, in Canadian
provinces, as well as in other common law jurisdictions has gone far down the
road to establishing a relative equality of legal position as between the Crown
and those with whom it deals, too far in my opinion to warrant a reversion to
an anachronism.

In a thorough canvass of Crown liability (with
emphasis on Australia, New Zealand and the United Kingdom), Hogg points out
that the legal basis of the rule of dismissal at pleasure is obscure: Liability
of the Crown (1971), at p. 150. In its application to civil servants,
it represented a somewhat uncritical acceptance of a rule governing members of
the armed forces. Here one could, more properly, speak of prerogative but I see
no correspondence between the position of members of the armed forces and
civilian employees engaged in a variety of clerical jobs. Given that there was
at common law a power to dismiss such employees at pleasure, I would opt for
the view, the better view in Hogg’s discussion of the matter (op. cit., at
p. 154), that this power can be subjected to contractual limitation.

[Page 223]

The Crown’s capacity to contract, if it was ever
in doubt, and the right to enforce against it contracts into which it has
entered is underlined in Nova Scotia by the Proceedings Against the Crown
Act, R.S.N.S. 1967, c. 239, s. 3(b). This provision, which is under
the heading of “Substantive Law”, gives the right to enforce claims against the
Crown in all cases in which the claim arises out of a contract entered into by
or on behalf of the Crown. The statute, a general one, contains no exclusion or
exemption of engagements with civil servants. At best, in my view, the power to
dismiss at pleasure could be regarded as an implied term of an engagement which
contained no contrary provision. That is not this case.

There are decisions, referred to by Hogg at pp.
151-5 of his book, which are not altogether consistent on the question whether
the Crown may be sued on its contracts of employment or even on the question
whether the relationship with employees may properly be characterized as
contractual. I need not dwell on them here because, apart from what I regard as
the preferable position, the legislation that operates in the present case puts
the issue beyond debate.

Clearly, the common law position has been
expressly displaced by an authorized collective agreement which owes as much to
the Nova Scotia Government Employees Association Act as it does to the
ratifying regulation under s. 9 of the Civil Service Act. Further,
there is no derogation from the terms of the Civil Service Act. The
effect of s. 57 has, rather, been overcome by a collective agreement
negotiated outside the Civil Service Act by competent parties. They were
entitled, pursuant to the authorization to bargain collectively found in the Nova
Scotia Government Employees Association Act, to provide as they did for
protection against allegedly unjustified dismissal and to adapt to their
purposes the arbitration provisions of the Civil Service Joint Council Act, provisions
which incorporate s. 8 of that Act directing the implementation of
arbitration decisions notwithstanding the provisions of the Civil Service
Act.

[Page 224]

This is sufficient to dispose of this case,
without reference to other considerations urged upon the Court by the
appellants. I would, accordingly, allow the appeal, set aside the judgments of
the courts below and direct that Wilson’s second grievance be submitted to
arbitration under the collective agreement. The appellants are entitled to
costs throughout.

The reasons of Martland, Ritchie and Estey JJ.
were delivered by

MARTLAND J.—This appeal is from a judgment of
the Appeal Division of the Supreme Court of Nova Scotia which unanimously
upheld the judgment at trial sustaining the right of the Governor in Council to
dismiss the appellant, Wilson, an employee in the civil service under the
provisions of s. 57 of the Civil Service Act (“the Act”),R.S.N.S. 1967, c. 34. These judgments rejected the contention of the
appellants that it was necessary for the Crown to show just and sufficient
cause for the dismissal, pursuant to the provisions of an agreement made
between Her Majesty in Right of the Province of Nova Scotia, represented by the
Civil Service Commission (“Commission”), and the Nova Scotia Government
Employees Association (“Association”), hereinafter referred to as “the
agreement”.

The facts which give rise to this appeal are as
follows.

The appellant Wilson (“Wilson”) was appointed on
a probationary basis as a Soil and Crops Specialist with the Department of
Agriculture and Marketing on July 15, 1974. The position requires the skills of
a trained agronomist and involves making recommendations to farmers on crop
production methods. The probationary period was for twelve months and on June
20, 1975, Wilson was told by the Director of Soils and Crops that his work had
proved unsatisfactory and that his appointment was not going to be made
permanent. The Director gave him the reasons for his opinion. However, Wilson’s
probationary period was validly extended six months, due to expire on January
14, 1976.

[Page 225]

On December 10, 1975, Wilson was again told that
his services were unsatisfactory. The Deputy Minister of Agriculture and
Marketing by a letter dated December 23, 1975, informed Wilson that his
services would not be required after the expiry of his probationary appointment
on January 14, 1976. Wilson filed a grievance alleging that he was being
treated unjustly and arbitrarily by not being recommended for a permanent position
and by the termination of his employment on January 14, 1976.

Wilson’s grievance proceeded through the levels
of the grievance procedure stipulated by the agreement until a Civil Service
Arbitration Board was appointed pursuant to s. 7 of the Civil Service
Joint Council Act, R.S.N.S. 1967, c. 35 (now repealed by 1978 (N.S.), c. 3,
s. 47). The Board held (and it was conceded) that by the terms of the
agreement the Commission was the employer and therefore the Deputy Minister was
not the proper person to dismiss Wilson. The Board on September 22, 1976,
ordered that Wilson be confirmed as a permanent employee.

The relevant provisions of the agreement are as
follows:

10.01 An employee may be appointed to his
position on a probationary basis for a period not to exceed twelve months.

10.02…

(B) The Employer may, before the expiration
of the employee’s initial twelve month period of appointment on a probationary
basis, extend the probationary appointment for a period not to exceed six
months.

…

10.04 The Employer may terminate a
probationary appointment at any time.

10.05 The Employer shall, after the
employee has served in a position on a probationary basis for a period of
twelve months, except as provided in Article 10.02(B) confirm the
appointment on a permanent basis.

…

23.01 The provisions for Arbitration
contained in the Civil Service Joint Council Act shall apply to grievances
resulting from this Agreement.

[Page 226]

24.01 No employee who has completed his
probationary period shall be disciplined by suspension without pay or by
discharge except for just and sufficient cause.

…

24.03 Where an employee alleges that he has
been suspended or discharged in violation of Article 24.01 he may within
ten days of the date on which he was notified in writing or within twenty days
of the date of his suspension or discharge, whichever is later, invoke the
grievance procedure including provisions for Arbitration contained in the Civil
Service Joint Council Act, and for the purpose of a grievance, alleging
violation of Article 24.01 he shall lodge his grievance at the final level
of the grievance procedure.

After the lodging of the grievance and before
the decision of the Board was rendered, the Governor in Council by Order in
Council 76-177 dated February 17, 1976, pursuant to s. 57 of the Act, terminated
Wilson’s employment, effective on and after February 12, 1976.

This termination of employment was grieved in
the manner required by the agreement and the appointment of another Civil
Service Arbitration Board was requested by the Civil Service Joint Council. The
Minister responsible refused to appoint a board stating that “the Civil Service
Arbitration Board is not the proper forum to challenge the actions of the
Governor in Council”.

The appellants applied by originating notice of
motion under the Arbitration Act, R.S.N.S. 1967, c. 12, for appointment
of an arbitration board to consider Wilson’s grievance respecting his dismissal
by the Order in Council. Counsel for the Attorney General claimed that the
dismissal was not a “grievance resulting from this Agreement” (art. 23.01),
that it was therefore not arbitrable, and that no arbitrators could be
appointed.

The appellants’ motion was dismissed. The
appellants appealed to the Appeal Division. The appeal was dismissed by a unanimous
judgment of

[Page 227]

the Appeal Division. The appellants have
appealed to this Court from that judgment.

The matters in issue in this appeal occurred
prior to the enactment of the Civil Service Collective Bargaining Act, 1978
(N.S.), c. 3. This fact is pointed out in the reasons of MacKeigan C.J. who
delivered the reasons of the Appeal Division. Dealing with the status of the
agreement on which Wilson relies, he said:

The collective agreement there involved was
made prior to the Civil Service Collective Bargaining Act, Stats. N.S.
1978, c. 3. It is not authorized by any statute. Its only possible basis for
legal validity and enforceability between the parties is that it was approved
by Order in Council on November 25, 1975 as a “regulation” pursuant to
s. 9 of the Civil Service Act.

Section 9, which long antedated any
collective bargaining in the civil service, authorizes the Civil Service
Commission with the approval of the Governor in Council to make “Regulations”
relating to employment in the Civil Service respecting many matters, including
“(a) terms and conditions of employment”, compensation, classification, “(g)
termination of employment and what constitutes resignation”, holidays and
leave, hours of work and “(j) hearing and determination of complaints and
grievances”.

This was one of the regulations made from
time to time since 1972 which provided that “the Commission may enter into and
execute an Agreement with the Nova Scotia Government Employees Association” in
respect of a specified group of employees, in substantially the form set out in
a schedule to the regulation, and which stated that the agreement when executed
“shall constitute the terms and conditions of employment” of the employees.

The agreement came into effect as a result of a regulation
made by the Commission on October 29, 1975, which stated that the Commission
might enter into an agreement with the Nova Scotia Government Employees
Association in respect of employees in the Professional and Administrative
Classification and Pay Plan. The regulation stated that the agreement, when
executed by the Commission and the Association, should constitute the terms and
conditions of employment of employees in that classification.

[Page 228]

This regulation was approved by the Governor in Council
on November 25, 1975, pursuant to s. 9 of the Act.

The Act is designed to regulate the civil
service of Nova Scotia. It provides for the creation of a Civil Service
Commission whose powers and duties are defined. The Commission is empowered by
s. 9, with the approval of the Governor in Council, to make regulations
relating to employment in the Civil Service respecting a number of matters,
including those mentioned in Chief Justice MacKeigan’s reasons.

Under the heading of “Appointments”, s. 22
provides: “Except where otherwise expressly provided, all appointments to the
Civil Service shall be upon examination pursuant to this Act and the
regulations and shall be during pleasure”.

Following the portion of the Act dealing
with the duties of the Commission, there is a part of the Act headed
“General”. One of the sections appearing under this heading is s. 57
dealing with a power of the Governor in Council:

57 Nothing
herein contained impairs the power of the Governor in Council to remove or
dismiss any Deputy Head or employee.

In my opinion, the effect of this
section is to retain for the Governor in Council an overriding power to
dismiss any civil service employee. The opening words of this
section permit the exercise of that power notwithstanding any other
provision contained in the Act.

The agreement on which Wilson relies regulates
the terms and conditions of employment of civil servants within the
classification to which it relates but does so only by virtue of a regulation
made by the Commission pursuant to s. 9 of the Act. However, the
power of the Commission to make the regulation was, by the terms of s. 57,
made subject to the provisions of that section. The regulation could only be
made subject to the power of the Governor in Council to dismiss.

Counsel for the appellants made four submissions
in support of his appeal. The first contention

[Page 229]

was that s. 57 merely preserved a Crown
prerogative to dismiss at pleasure and that, at common law, that prerogative
was inapplicable where the employment of an employee of the Crown was governed
by a contract requiring just cause for dismissal.

This argument overlooks the fact that under
s. 57 of the Act the power to dismiss is statutory and that such
statutory power is declared to exist without impairment by anything in the Act.
The contract upon which the appellants rely has validity as a result of a
regulation made under s. 9, and nothing contained in s. 9 can impair
the power to dismiss given by s. 57.

The appellants’ second submission placed reliance
upon s. 22 of the Act which states that “Except where otherwise
expressly provided, all appointments to the Civil Service… shall be during
pleasure”. The contention is that the regulation approving the agreement and
the provisions of that agreement do provide otherwise and consequently the
appellant’s appointment was not during pleasure.

The answer to this submission is that,
although it might have merit if the appellant’s dismissal had been founded on
s. 22 standing alone, the provisions of s. 22 are themselves subject
to the power to dismiss by the Governor in Council under s. 57 and under
that section nothing contained in s. 22 can affect that power.

The third argument is that subs. 54(1) of the Act
authorizes the enforcement of the “just cause” provision despite
s. 57. Subsection 54(1) provides as follows:

54 (1) In
any case where the Commission considers that it is not practicable or not in
the public interest that this Act shall apply to any position or positions, the
Commission, with the approval of the Governor in Council, may exclude such
position or positions in whole or in part from the operation of the Act, and
make such special regulations as it deems advisable respecting such position or
positions.

In my opinion, the provisions of this subjection
are not relevant to the circumstances of this case.

[Page 230]

It provides that the Commission may, if it
considers that it is not practicable or in the public interest to have the Act
apply to certain positions in the civil service, with the approval of the
Governor in Council exclude such positions from the operation of the Act.

The Commission did not purport to exclude the
appellant’s position or the position of those civil servants within the
classification defined in the agreement from the operation of the Act. On
the contrary, by making the regulation under the Act to authorize the
agreement, the Commission was dealing with the classifications of civil
servants which included the appellants pursuant to the operation of the Act.

The appellants’ final submission was that the
statute which incorporated the Association, 1973 (N.S.), c. 136, permitted the
enforcement of the “just cause” provision independently of s. 57. This
statute created and established the Nova Scotia Government Employees Association
as a body corporate. The Association succeeded and replaced an unincorporated
Nova Scotia Government Employees Association which had previously existed. The
objects of the Association include bargaining collectively with Her Majesty the
Queen in the right of Nova Scotia. The Association is empowered under
para. 6(d) of the statute:

6…

(d) to enter into arrangements with any
authorities, governmental, municipal, local, or otherwise that may seem
conducive to the attainment of the Association’s objects or any of them, and to
obtain from any such authority, rights, privileges and concessions which the
Association may have and the capacity to receive and may think desirable to
obtain, to carry out, execute, exercise or comply with any such arrangements,
rights, privileges and concessions;

The appellants’ submission, as I understand it,
is that this statute is independent of the Act and that its provisions
are not affected by the opening words of s. 57 which refers to “Nothing
herein contained”, i.e., contained in the Act. It is urged that
by virtue of para. 6(d) the Association can obtain rights, privileges and
concessions under the

[Page 231]

agreement which are then exempt from the
operation of s. 57.

However, the fact is that the statute which
created the Association did not confer on the Association or its members any
rights or privileges as against the Crown. It is an incorporating statute
creating a corporate entity. The Association is empowered to bargain
collectively with the Crown, as it did here, but such bargaining had to be
effected pursuant to the Act. The bargaining resulted in the agreement,
but the agreement when made only acquired validity when approved by the
Governor in Council as a regulation under s. 9 of the Act. Section
9 and the regulations pursuant to it are subject to the provisions of
s. 57.

Reference is made in the appellants’ argument to
the Civil Service Joint Council Act, 1967 (N.S.), c. 6; R.S.N.S. 1967,
c. 35; which was repealed by s. 47 of the Civil Service Collective
Bargaining Act, 1978 (N.S.), c. 3. This statute, which preceded by six
years the incorporation of the Association, provided a machinery for
considering the terms of employment of civil servants. It provided for the
creation of a Civil Service Joint Council composed of three public servants
appointed by the Governor in Council, three members appointed by the Governor
in Council on the recommendation of the Nova Scotia Civil Service Association
and a chairman appointed by the Governor in Council.

The chairman was required to prepare the agenda
of meetings and to put on the agenda at the request of a member any matter
concerning the terms of employment of civil servants. The Council was required
to consider and negotiate such matters as were put on the agenda. The Appeal Division
of the Supreme Court of Nova Scotia in Nova Scotia Government Employees
Association, Scratch, Theriault and Watts v. Nova Scotia Civil Service
Commission[4] held
that the Council did not have jurisdiction to consider individual grievances,
but that its jurisdiction was concerned only with general terms of employment.

[Page 232]

Provision was made in the statute for a Civil
Service Arbitration Board.

Section 8 provided as follows:

8 The
Governor in Council, notwithstanding the provisions of the Civil Service Act,
is empowered to and subject to Section 9 shall implement any decision of the
Joint Council or the Arbitration Board and the Civil Service Commission is
empowered to and subject to Section 9 shall implement such a decision in the
same manner as it implements a provision of the Civil Service Act or a
regulation made thereunder.

Counsel for the appellants submits that this
section would permit the enforcement of a collective agreement against the
Crown “notwithstanding the provisions of the Civil Service Act”. Whether
this is so or not, it is not an issue which is before the Court on this appeal.
We are not concerned with any decision of the Joint Council or of the
Arbitration Board. Neither of these bodies had anything to do with the
formulation of the agreement.